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Title: The Constitution and the Powers of War
Source:
The Tenth Amendment Center
URL Source: http://www.tenthamendmentcenter.com ... ign=Tenth%20Amendment%20Center
Published: Aug 8, 2010
Author: staff
Post Date: 2010-08-08 22:04:24 by F.A. Hayek Fan
Keywords: None
Views: 142
Comments: 7
The framers of the Constitution attempted to balance the power of the President as commander-in-chief with that of Congress, the representatives of the People. Article II, Section 2 of the Constitution gives to the Executive Branch the command of the nation’s armed forces, while Article I, Section 8 gives to the Legislative Branch the power to decide when the United States goes to war. They weighed the individual will of the Executive against the deliberative function of the Legislature, whose constituents would bear the full costs of any war. Thus, the framers deliberately separated the powers of declaring and waging war; they confined these powers in such a way so as to thwart the tyranny of kings. Despite being known as one of the greatest champions of centralized power of the times, even Alexander Hamilton felt that the President must generally bow to Congressional directions in times of peace and also in times of war. He stated this clearly in Federalist #69: “The President is to be commander-in-chief of the army and navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces.; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies – all which, by the Constitution under consideration, would appertain to the legislature.” Our nation’s founders were far from perfect, and at times, inconsistent and unjust; but, on the powers of war, they were unwavering, and their principles were sound. Therefore, we must also consider the following statements: “The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.” “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war.” “Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.” “The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature” The founders were absolutely clear in their demand that the country would only go to war upon the collective decision of the representatives of the People. Additionally, a primary reason for creating a system of representation was due to exigencies of the day that made it impossible for the People to meet and decide their fate in person. Thus, the true reason for entrusting the Legislature with the power to declare war was to ensure that the People would be involved in the decision as much as was physically possible. What the Framers did not imagine was a weak and ineffectual Congress that failed to claim its rightful authority in deciding when the nation would go to war, or a power-hungry President that wouldn’t refuse an extra-constitutional transfer of such power from Congress. The typical statist response to this argument is to claim that previous Presidents have sent troops into battle “hundreds of times” without a Congressional declaration of war. Thus, the favorite Presidential excuse for claiming the right to initiate war unilaterally is nothing more than the reasoning of a child: Everybody does it. But, the Constitution remains valid even after Presidents violate it. We must hold that thought; a transfer of power is a violation of the Constitution by both the President, who accepts the transfer, as well as those in Congress who vote to delegate their Constitutionally-mandated responsibility to another branch. In recent decades, such transfers have ultimately been no more than a blank check for the President. It has been known throughout history that kings, dictators, and the executive branch of governments are always overly eager to go to war. This is precisely why our founders tried desperately to keep decisions about going to war in the hands of the Legislature, and close to the People. Unfortunately this process has failed us for decades. Therefore, one obvious reason for dividing the war powers was to prevent such dictatorial powers from being placed in the hands of one person, the President. The framers understood that, throughout history, rulers of nations worldwide had begun wars strictly on the basis of international politics or personal desires. They clearly understood that rulers would often get the urge to remove foreign public officials, or dictate the policies of foreign nations, and that such urges are dangerous to liberty, no matter what the reason. Sometimes they would do this by sending money to opposing groups with taxpayer money, and sometimes they would do so by assassination or coup. But, history has proven to us that when all else fails, such despotic leaders will ultimately resort to invasion; as President Bush and his son did with Iraq; as Presidents Kennedy and Johnson did with Vietnam; as President Clinton did with Yugoslavia; as President Truman did with Korea; and as other Presidents did with less fanfare but similar vigor. Another reason for entrusting the Congress with the power to declare war was in the hope that this would ensure, as much as possible, that a war was justified. Thus, the idea was that if a President desired to send the nation into war, an appeal to the People, through their representatives, would be required to convince them of the justification for war. Although our experience has shown that they failed, the framers desperately tried to minimize the potential for political entanglements in foreign affairs by dividing the war powers between the President and the Congress. Why was all this so important to the framers? Because they wisely feared dictatorial powers; even in the hands of an elected leader. They also recognized that, of all potential enemies to liberty, war is the worst because it provides the greatest opportunity for the government to infringe on our rights! As James Madison suggested: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.” We must now recognize that the millions of dead in Korea and Vietnam, as well as the current quagmires in Iraq and Afghanistan, all result from the same defective policy of ignoring our laws as codified in the Constitution; all result from the same faulty foreign policy of American interventionism that our government has pursued for more than a century. It would be overly simplistic, and completely erroneous, to say that the current administration is alone responsible for such actions and our current wars. This is an endemic problem in our system of governance that crosses party lines, and has infected nearly every person who is involved in the administration of our government’s foreign policy. By rejecting the advice and the rules laid down by the founders and early Presidents, our recent leaders have gone so far astray from warnings against entangling alliances, that the founders would hardly recognize the government they created. Policing the world and “spreading democracy” is not our calling. Additionally, no such action is permitted by the Constitution. These concepts are the key to solving our problems. If we don’t want our delegated rulers to violate the contract they have sworn to uphold; if we don’t want blank checks drawn indefinitely on the public liberty and on civil society, we must strive to have our politicians follow the law that governs the government – the Constitution. “Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose; and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, ‘I see no probability of the British invading us’ but he will say to you, ‘be silent; I see it, if you don’t.’”
- James Madison
- James Wilson
- Thomas Jefferson
- James Madison
- Abraham Lincoln
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#1. To: F.A. Hayek Fan (#0)
Clashing viewpoints of the constitution (CSA and USA) during the civil war. - - - http://www.scribd.com/doc/35637955/WHITING-William-The-War-Powers-of-the-President-Military-Arrests-And-Reconstruction-of-the-Union-7-28-1863 - - - http://www.scribd.com/doc/35637928/STEPHENS-Alexander-Letter-on-Martial-Law-and-Military-Usurpation-9-8-1862 STEPHENS Alexander - Letter on Martial Law and Military Usurpation (9-8-1862) - - -
If my memory is correct, you are an attorney. I am not and therefore am not qualified to competently debate you on the constitutionality of Whitings opinions. Having said that, I do have an opinion on the matter. It seems to me that due to the nature of government (in general) to grab power for itself, Whitings opinions can only lead to totalitarianism. He appears to be a Civil War era John Yoo. Regardless of the difference of opinion Whiting claims the founder had concerning Congressional and Presidential war powers, I do not believe that any of the founding fathers meant for the Constitution to be "only a frame of government, a plan in outline for regulating the affairs of an enterprising and progressive nation." I have read both the federalist and anti-federalist papers and as far as I can remember, not even Hamilton held a view similar to this. It seems to me that Whiting's view allows the government to do whatever it is they want to do with no limits. If that was the intent of the founders, then why bother creating the Constitution in the first place? As a matter of fact, since Whiting was the War Departments legal counsel and the one who talked Lincoln into disavowing his previous strict constructionist views, it could be said that today's government is a direct result of Whiting's opinions. It should be clear by all but the most partisan that both sides of the aisle are going to continue gathering power in Washington DC to the detriment of the states and the individual. They are going to continue to build their police state infrastructure and they are going to continue to bully the world until they get us into WWIII.
Your memory recalls something I have never claimed. However, you are quite correct your opinions of Whiting. Rather than Whiting being a Civil War era John Yoo, the Bush administration merely recycled the (il)legal arguments of the Lincoln administration which committed serial rape of the Constitution and has been besainted ever since. Today's leviathan government is, indeed, a direct result of the changes brought about by the Civil War, not restricted to Whiting. It amounted to a revolution and an enormous expansion of Federal power. Lincoln gave us the first unapportioned Federal income tax, the Internal Revenue Bureau to enforce it, the huge standing Federal army and lots of other things. He even packed the Supreme Court with a 10th justice (he appointed 5 of them) to help ensure no adverse legal decisions.
Notice Lincoln's hands resting on the fasci ! He was the fascist Santa !
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#3. To: nolu_chan (#1)
(Edited)
#5. To: F.A. Hayek Fan (#3)
If my memory is correct, you are an attorney. I am not and therefore am not qualified to competently debate you on the constitutionality of Whitings opinions. Having said that, I do have an opinion on the matter. It seems to me that due to the nature of government (in general) to grab power for itself, Whitings opinions can only lead to totalitarianism. He appears to be a Civil War era John Yoo.
#6. To: nolu_chan (#5)
Lincoln gave us the first unapportioned Federal income tax, the Internal Revenue Bureau to enforce it, the huge standing Federal army and lots of other things.
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